from the bullying-gone-legal dept

Let's start this off with the obvious: bullying sucks. In particular, when the bullies and the bullied are students, it sucks extra hard. That said, we've talked before about how overreacting to bullying situations ends up with everyone looking silly. And when the prosecutors and lawyers decide to get involved, all the more so.

A Columbia high school student faces a possible felony charge after her arrest for changing a classmate's name in the school yearbook to a sexually suggestive term. The 17-year-old Hickman High School junior was arrested May 14 after she allegedly changed a student's last name from Mastain to "masturbate" in the 100th edition of the Hickman Cresset yearbook. She could be charged with first-degree property damage, a felony, and harassment.

My first reaction to this was to be thankful that I didn't have any access to my high school's year book files. If I had, the overwhelming likelihood is that I'd still be serving time in a federal pen, with a teardrop tattoo or two on my face and a strong fear of showers. My second thought was, roughly: what the hell? Felony charges? I get that the school is probably annoyed, but this just screams of an over-reaction to suspected bullying. Hell, the victim of the prank doesn't even seem to think it's a big deal.

Raigan Mastain said although she wasn't happy about what happened, she also "wasn't devastated."

"I was kind of annoyed. It was stupid, but I wasn't that upset," she said.

Elsewhere, she pointed out that she didn't even know the girl that well, so the whole thing was strange to her.

Both Acopolis and the girl whose name was changed, Raigan Mastain, an aspiring graphic designer, called the last-minute change by another yearbook staff member as an act of immaturity, not malice. "I hardly knew her at all," said Mastain, who graduated from Hickman last week. "I barely worked with her. We weren't friends. But I didn't think I had any problems with her."

Still, given all that, Mastain went on to suggest that the charges would be warranted because "it's bullying" and "there needs to be consequences" while also noting that the damage to school property was immense. However, considering she's already graduated and didn't even know any of this had happened until a friend discovered the prank and sent her a text message, how much personal harm was actually done? And for all the talk about property damage, the school decided not to even reprint the year books, instead covering up the naughty word with a sticker. What does a sticker cost? $1? $700 worth of cost, plus a mildly annoyed fellow student, equates to felony charges?

As with so many of these stories, it's likely that emotions ran high and the school and community thought they needed to be seen doing something about so-called bullying. The end result, however, will be a young woman living the rest of her life with a felony on her record for what was a silly and stupid high school prank. That seems entirely unreasonable.

from the a-lot-to-worry-about dept

We posted one short post about a key comment from Register of Copyright, Maria Pallante, suggesting that the focus of copyright law should be on large scale piracy, rather than the teenager downloading at home. Many in our comments rightfully cheered on this line, but as the hearing is concluding it's worth pointing out that there are a number of things she's brought up that should be equally, if not more, troubling.

"I've never thought that copyright inhibits innovation."

Throughout the hearing, she repeatedly emphasizes her old line about how copyright is "first for the author" and then later for the public. This is a rewriting of history. Copyright is for the public, period. The means to do that is to create a benefit for authors. She's absolutely correct that these two things can and should be aligned, but those things are only aligned when you put the public interest first and then look to see how to create the best incentives following that. It's a different approach, and I'm troubled by her repetition of it being about "the artist first." It's not.

Also, troubling, was that she more or less endorsed large parts of SOPA as a proper solution for going forward. Specifically, she calls out the "follow the money" approach, which was a key part of SOPA, as a solution she believes would be effective for enforcement. This ignores the massive unintended consequences associated with that approach -- including the ability to shut down and kill off all sorts of innovations early on. A "follow the money" approach would have killed off radio, cable TV, the photocopier, the VCR, the MP3 player, the DVR and more in their early days. Do we really want that?

She also goes back, repeatedly, to saying that we need to make the public performance right a felony, rather than a misdemeanor -- another piece of SOPA. This is the "streaming" question. She wants to let law enforcement throw people in jail for streaming works, even if they do no host or even touch the content itself. That's pretty scary. She talks about the horrors of people "streaming the Super Bowl," ignoring that the Super Bowl isn't suffering from this at all. They're raking in tons of cash from advertisers. And yet, she claims that making streaming a felony is one of her "top 3" priorities on fixing copyright.

In a rather bizarre exchange with Rep. Chu, Pallante agrees with Chu that DRM is a form of innovation and that this shows that copyright inspires innovation. Furthermore, she insists that DRM is a required part of a functioning copyright system. Why? That is not explained.

Elsewhere, she mostly just focused on how things were "broken" and needed to be explored -- but held off on making specific proposals. That's a perfectly reasonable position to take, but it's worrying that there's little to no discussion about why the copyright system is broken. That is, we're talking about fixes to certain parts and a rethinking of those parts, but not looking at the very crux of the issue: whether or not copyright actually is creating an incentive, and if that incentive is useful or necessary. There's no discussion of why or how people create -- nor is there any discussion about how the vast majority of creation today is not for direct monetary benefit anyway, and yet is still locked up by copyright law. Without examining the core issues, the overall reform process is just going to produce another, outdated and broken law.

from the destroyed-to-protect-imaginary-property dept

The reactions to Aaron Swartz's suicide continue to pour in and the recurring theme is one of disbelief at the government's hard nosed prosecutorial stance towards Swartz's actions. The Secret Service, for unknown reasons, took over the case and the prosecutor insisted on a guilty plea across the board as well as pretty much guaranteeing jail time for the hacker.

The act was harmless—not in the sense of hypothetical damages or the circular logic of deterrence theory (that’s lawyerly logic), but in John Stuart Mill’s sense, meaning that there was no actual physical harm, nor actual economic harm. The leak was found and plugged; JSTOR suffered no actual economic loss. It did not press charges. Like a pie in the face, Swartz’s act was annoying to its victim, but of no lasting consequence.

This fact cannot be overstated. JSTOR itself declined to press charges against Swartz once its "property" was recovered. But this wasn't good enough for the federal prosecutor who took an outdated law and applied the interpretation that would do the most damage.

In our age, armed with laws passed in the nineteen-eighties and meant for serious criminals, the federal prosecutor Carmen Ortiz approved a felony indictment that originally demanded up to thirty-five years in prison. Worse still, her legal authority to take down Swartz was shaky. Just last year, the Ninth Circuit Court of Appeals threw out a similar prosecution. Chief Judge Alex Kozinski, a prominent conservative, refused to read the law in a way that would make a criminal of “everyone who uses a computer in violation of computer use restrictions—which may well include everyone who uses a computer.” Ortiz and her lawyers relied on that reading to target one of our best and brightest.

Wu says this targeting cut down a genius in his prime -- a curious and impulsive young man whose actions were actually less illegal than those of two computing pioneers, Steve Jobs and Steve Wozniak, who hacked AT&T's system for free long distance calls and sold "blue boxes" so others could do the same. They were never prosecuted for their actions and went on to found Apple -- something a prosecutor like Ortiz could have made impossible.

"We can rightly judge a society by how it treats its eccentrics and deviant geniuses—and by that measure, we have utterly failed," Wu says. And why? Because an adversarial, zealous prosecutor put in charge of the right case can wreak an incredible amount of havoc in pursuit of "justice."

Yes, most of the time prosecutors do chase actual wrongdoers, but today our criminal laws are so expansive that most people of any vigor and spirit can be found to violate them in some way. Basically, under American law, anyone interesting is a felon. The prosecutors, not the law, decide who deserves punishment.

Between the system of IP laws that awards fees for imaginary damages and a government that views any information leaks as criminal activity, Swartz never had a chance -- and sadly, unless there are major changes in the system, neither will his successors.

In an age when our frontiers are digital, the criminal system threatens something intangible but incredibly valuable. It threatens youthful vigor, difference in outlook, the freedom to break some rules and not be condemned or ruined for the rest of your life. Swartz was a passionate eccentric who could have been one of the great innovators and creators of our future. Now we will never know.

An effort to increase public knowledge, with no profit motive, as misguided and rash as it may have been, was rewarded with an intense crackdown, even after the "victim" had stated it was satisfied with the outcome. No matter your view on intellectual property, it should never have come to this. Swartz brazenly exploited loopholes to liberate documents he felt should have been public domain in the first place, much as he legally exploited free usage of the PACER system earlier.

It's very tempting to couch this discussion in language that pays its due to "rights holders." Swartz somehow needed to be punished for his deeds, even with some sort of slap on the wrist, because it was legally or morally wrong. MIT was abused. JSTOR was abused. The IP system -- the status quo -- was abused by Swartz's actions. That's the way we're programmed to feel. That no matter the overreaction, we need to give some quarter to the reacting parties. But when it comes to this situation, it feels completely wrong.

Wu's take shows just how dangerous this form of dues-paying is -- grant the system a little token respect before heading off into the "but" section of the argument and you've already justified a reaction. If the reaction seems too harsh, it's too late. You've already implicitly granted the system the right to punish perceived wrongs, something it often handles with ineptness or vindictiveness, and in worst case scenarios, large quantities of both.

The system has little use for rebels, innovators, and the internet-native element that threatens cherished IP institutions. It wasn't pleased with Swartz and the best way to discourage more Swartzes from leaping into action was to lock up the original, or bleed him dry with an extended legal battle. It ended up with nothing. Or rather, it ended up creating a martyr and rekindling a movement -- "nothing" would have been better. There will be more like him and, if the system remains unchanged, they will have their futures extinguished as soon as their actions put them in the firing line. The protected works are quantifiable. The extinguished possibilities verge on endless.

from the how-many-felonies-have-you-committed-today? dept

We just wrote about a grandmother getting arrested for buying cold medicine, without realizing a state limit on how much pseudoephedrine could be bought in a single week. Even though everyone involved admits that this grandmother wasn't in the meth making business, the police still felt the need to go ahead with the arrest. In the comments, one of our readers, BobInBaltimore, noted that a big part of the problem is the fact that we've pretty much done away with the concept of "intent to commit a crime" as being a prerequisite for establishing criminality.

Indeed, the WSJ just had an opinion piece all about the how modern technology has made accidental criminals out of all of us, based on the new book Three Felonies a Day: How the Feds Target the Innocent. As you can probably guess, the thesis of the book is that modern technology, combined with an increasingly confusing, misunderstood or just downright ridiculous set of laws, means that everyone is committing felonies all the time, entirely without meaning to do so. In the opinion piece, it's argued that we really need to bring back the "intent to commit a crime" requirement, as it would put an end to a lot of these arrests. It makes a lot of sense, which is why it'll probably never happen.